Category: Law Rev (Iowa)


Some Sense on Top Pay

Executive pay continues to spark heated debate: some want it curtailed across the board, the impetus of recent federal law, while others want no legal  oversight whatsoever, the effect of Delaware corporate law.   Contract law may provide an optimal solution, narrower than the overly broad federal regime yet targeting egregious cases ignored by Delaware.  

Thanks to readers of this blog for comments, forthcoming in the Iowa Law Review is my paper, now available on SSRN, “A New Legal Theory to Test Executive Pay: Contractual Unconscionability.”  The paper is available for free downloading here.  The abstract follows below.

Lucrative pay to corporate managers remains controversial yet continues to evade judicial scrutiny for legitimacy. Although many arrangements likely would pass the most rigorous scrutiny, it seems equally clear that some would not. Some agreements are not the product of arm’s-length bargaining, can rivet managers on short-term stock prices at the destruction of long-term business value, and can misalign manager–shareholder interests.

Yet even such objectionable arrangements are immune from serious legal oversight. In theory, they are open to judicial review under corporate law, but shareholders challenging pay contracts face formidable procedural hurdles in derivative litigation and substantive obstacles from corporation law’s business judgment rule and the anemic doctrine of waste. A new legal theory would be useful to check board excesses in the population of clearly objectionable cases.

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Iowa Law Review, Volume 96, Issue 2 (January 2011)

Iowa Law Review


The Coercion of Trafficked Workers
Kathleen Kim

IP Misuse as Foreclosure
Christina Bohannan

Consent to Retaliation: A Civil Recourse Theory of Contractual Liability
Nathan B. Oman

Automation and the Fourth Amendment
Matthew Tokson


No Middle Ground? Reflections on the Citizens United Decision
Randall P. Bezanson


(Potentially) Resolving the Ever-Present Debate over Whether Noncitizens in Removal Proceedings Have a Due-Process Right to Effective Assistance of Counsel
Walter S. Gindin

Princo, Patent Pools, and the Risk of Foreclosure: A Framework for Assessing Misuse
Phillip W. Goter

Holden Caulfield Grows Up: Salinger v. Colting, the Promotion-of-Progress Requirement, and Market Failure in a Derivative-Works Regime
John M. Newman

Is Senator Grassley Our Savior?: The Crusade Against “Charitable” Hospitals Attacking Patients for Unpaid Bills
Amanda W. Thai


Iowa Law Review, Volume 96, Issue 1 (November 2010)

Iowa Law Review


Real Copyright Reform
Jessica Litman

Policy Reversal on Reverse Payments: Why Courts Should Not Follow the New DOJ Position on Reverse-Payment Settlements of Pharmaceutical Patent Litigation
Henry N. Butler & Jeffrey Paul Jarosch

The Uneasy Case for the Inside Director
Lisa M. Fairfax

Judging Myopia in Hindsight: Bivens Actions, National Security Decisions, and the Rule of Law
Peter Margulies

Tort Liability and the Original Meaning of the Freedom of Speech, Press, and Petition
Eugene Volokh


Automobile Bankruptcies, Retiree Benefits, and the Futility of Springing Priorities in Chapter 11 Reorganizations
Daniel Keating


Out-of-State Civil Unions in Iowa After Varnum v. Brien: Why the State of Iowa Should Recognize Civil Unions as Marriages
Drew A. Cumings-Peterson

Al-Kidd v. Ashcroft: Clearly Established Confusion
James E. Mosimann

Sexting: How the State Can Prevent a Moment of Indiscretion from Leading to a Lifetime of Unintended Consequences for Minors and Young Adults
Elizabeth M. Ryan

The FLSA Antiretaliation Provision: Defining the Outer Contours of What Constitutes an Employee Complaint
Erin M. Snider


Iowa Law Review, Volume 95, Issue 5 (July 2010)

Iowa Law Review


 Burying the “Continuing Body” Theory of the Senate
Aaron-Andrew P. Bruhl

 Protecting Patients with Passports: Medical Tourism and the Patient-Protective Argument
I. Glenn Cohen

 Do Partisan Elections of Judges Produce Unequal Justice When Courts Review Employment Arbitrations?
Michael H. LeRoy

 Evidence Law as a System of Incentives
John Leubsdorf


 A New Wave of Paternalistic Tobacco Regulation
Robert J. Baehr

 Fair Use Through the Lenz of § 512(c) of the DMCA: A Preemptive Defense to a Premature Remedy?
Joseph M. Miller

 Judicial Federalism, Equal Protection, and the Legacy of Racing Association of Central Iowa
Brett F. Roberts


Iowa Law Review, Volume 95, Issue 4 (May 2010)

Iowa Law Review


Insuring Understanding: The Tested Language Defense
Michelle Boardman

Choice of Law Theory and the Metaphysics of the Stand-Alone Trigger
Lea Brilmayer & Raechel Anglin

Managing Identity: Buying Into the Brand at Work
Marion Crain

Why Should the First Amendment Protect Government Speech When the Government Has Nothing To Say?
Steven G. Gey


Cybernetic-Enhancement Technology and the Future of Disability Law
Collin R. Bockman

Equal Education Opportunity and the Pursuit of “Just Schools”: The Des Moines Independent Community School District Rethinks Diversity and the Meaning of “Minority Student”
Jacob E. Meusch

Language Legislation in Iowa: Lessons Learned from the Enactment and Application of the Iowa English Language Reaffirmation Act
Evan L. Seite


Iowa Law Review, Volume 95, Issue 3 (March 2010)

Iowa Law Review


Peacemaking in the Culture War Between Gay Rights and Religious Liberty
Jennifer Gerarda Brown

Inventing Tests, Destabilizing Systems
Kevin M. Clermont & Stephen C. Yeazell

The Law of Vertical Integration and the Business Firm: 1880–1960
Herbert Hovenkamp

“We, the Paparazzi”: Developing a Privacy Paradigm for Digital Video
Jacqueline D. Lipton


A Duty to Kiss and Tell? Examining the Uncomfortable Relationship Between Negligence and the Transmission of HPV
Timothy J. Hasken

Issuing Violations Without Tangible Evidence: Computer Modeling for Clean Water Act Enforcement
Sara R. Reichenauer

Drawing the Line: Niswander’s Balance Between Employer Confidentiality Interests and Employee Title VII Anti-Retaliation Rights
Nicholas M. Strohmayer


Iowa Law Review, Volume 95, Issue 2 (February 2010)

Iowa Law Review


W(h)ither Economic Substance?
Leandra Lederman

Executive Detention, Boumediene, and the New Common Law of Habeas
Baher Azmy

Where United Haulers Might Take Us: The Future of the State-Self-Promotion Exception to the Dormant Commerce Clause Rule
Dan T. Coenen

Property, Privacy, and the Pursuit of Interconnected Electronic Medical Records
Mark A. Hall


Cultural Pragmatism: A New Approach to the International Movement of Antiquities
Matthew R. Hoffman

The Judge’s Order and the Rising Phoenix: The Role Public Interests Should Play in Limiting Author Copyrights in Derivative-Work Markets
Christine M. Huggins

Unreasonable Delay at the VA: Why Federal District Courts Should Intervene and Remedy Five-Year Delays in Veterans’ Mental-Health Benefits Appeals
Jacob B. Natwick


Iowa Law Review, Volume 95, Issue 1 (November 2009)

Iowa Law Review


Juvenile Justice: The Fourth Option
Christopher Slobogin & Mark R. Fondacaro

Testing Modern Trademark Law’s Theory of Harm
Mark P. McKenna

Ignorance Is Effectively Bliss: Collateral Consequences, Silence, and Misinformation in the Guilty-Plea Process
Jenny Roberts

Formalism and Pragmatism in Ruins (Mapping the Logics of Collapse)
Pierre Schlag


Making Taxes More Certain: Iowa State Legislators’ Guide to Combined Reporting
Lindsay C. McAfee

Rescuecom Corp. v. Google Inc.: A Conscious Analytical Shift
Jessica A.E. McKinney

An Iowa Immigration Raid Leads to Unprecedented Criminal Consequences: Why ICE Should Rethink the Postville Model
Cassie L. Peterson

Clearing the Air: Analyzing the Constitutionality of the Iowa Smokefree Air Act’s Gaming-Floor Exemption
Kevin D. Sherlock


Iowa Law Review, Volume 94, Issue 5 (July 2009)

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Iowa Law Review, Volume 94, Issue 4 (May 2009)

Iowa Law Review Banner.jpg


Saving Facebook
James Grimmelmann

Attempt by Omission
Michael T. Cahill

Strange Bedfellows: Criminal Law, Family Law, and the Legal Construction of Intimate Life
Melissa Murray

Insider Trading and the Gradual Demise of Fiduciary Principles
Donna M. Nagy


Corporate Liability for Violations of Labor Rights Under the Alien Tort Claims Act
Wesley V. Carrington

The Right and Wrong Ways to Sell A Public Forum
John C. Crees

Searching for a Solution: A Proposed Change to the Code of Iowa Chapter 808A
Morgan N. Engling

Nonprofits: Are You at Risk of Losing Your Tax-Exempt Status?
Gina M. Lavarda